DHS Amends Chemical Facility Rules

November 20, 2007

On November 20, 2007 the Department of Homeland Security (DHS) published in the Federal Register its amendments and revisions to the Chemical Facility Anti-Terrorism Standards Interim Final Rule (6 C.F.R. Part 27) and list of Chemicals of Interest.  Within sixty days of publication in the Federal Register, any facility that possesses a Chemical of Interest in quantities that meet or exceed screening threshold quantities (STQ) must complete and submit a Top-Screen Survey to DHS.  The Top-Screen Survey will be used to assist the DHS in determining whether the facility presents a high level of security risk, and if so, the facility will be required to prepare a Security Vulnerability Assessment.  Upon submittal of the Security Vulnerability Assessment, the facility may also be required to prepare and submit a Site Security Plan.

The DHS has made significant changes to the list of Chemicals of Interest since the proposed list was published in April of 2007.  One such change is that the DHS has set the STQ and minimum concentration for mixtures for each chemical according to the security issue implicated.  DHS has established three main categories of security issues:  (1) Release, (2) Theft/Diversion, and (3) Sabotage/Contamination.  DHS has also created subcategories of certain security issues.  The Release category has three subcategories: 1) Toxics, 2) Flammables, and 3) Explosives.  The Theft/Diversion category also has three subcategories:  1) Chemical Weapons/Chemical Weapons Precursors, 2) Weapons of Mass Effect, and 3) Explosives/Improvised Explosive Device Precursors.  Chemicals of Interest were assigned to one or more categories and subcategories so that facilities would better understand the DHS’s rationale for including each chemical and its STQ.

The DHS has amended the rule with instructions as to how to calculate the STQ for each security issue.  Certain chemicals implicate more than one security issue and a separate calculation must be performed for each category.  The DHS also provides specific exclusions from the calculation requirements.  For example, a facility need not include Chemicals of Interest used as a structural component or for routine janitorial maintenance.  Another example is that a facility calculating whether the facility meets the STQ for propane under the Release/Flammable category need not include propane in tanks of 10,000 pounds or less.  Therefore, it is important for facilities that may have previously evaluated whether they are required to file a Top-Screen Survey under the Interim final rule to reevaluate whether the amended rule still applies to their facility. 

Facilities required to file a Top-Screen Survey must register with the DHS to obtain a user name and password that will allow access to the Chemical Security Assessment Tool (CSAT) system.  The facility must then submit a Top-Screen Survey application listing each Chemical of Interest meeting or exceeding the STQ and minimum concentration. 

It is recommended that facilities subject to the Rule allow sufficient time to register and assemble information necessary to complete the Top-Screen survey via the CSAT system. 

 

For additional information, please contact Kevin McMurray kmcmurray@fbtlaw.com or Jeffery Culver jculver@fbtlaw.com of Frost Brown Todd’s Environmental Law Group, or visit the Environmental Law Group’s page.

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